Seamless O365 Subscription Agreement

Last updated in May 2019

 

This Subscription Agreement applies to Seamless for Microsoft Office 365 or Microsoft SharePoint Online.

If a customer registers for a free Seamless trial, the applicable provisions of this agreement will also govern that free trial.

By accepting this agreement, by (1) clicking a box indicating acceptance, (2) executing an order form that references this agreement, or (3) using the free trial.

This Agreement was last updated on May 3, 2019. It is effective between Customer and AskMeWhy as of the date of Customer’s accepting this Agreement.

For the «Seamless O365 Service Level and Support Agreement″ («Seamless O365 SLSA») please refer to the link: www.askmewhy.com/legal/seamless-o365-slsagreement

 

Definitions

Unless the context otherwise requires, the following expressions shall have the following meanings:

«AskMeWhy», «us», «our» or «we» means AskMeWhy AG.

«Agreement» means this Seamless O365 Subscription Agreement.

«Authorized User» is a unit of measure by which the Service (Seamless) is licensed. An Authorized User is a unique person that uses Seamless Service.

«Beta Services» means Seamless services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, evaluation, or by a similar description.

«Confidential Information» means the confidential information relating to the subject matter of this agreement and includes (a) confidential information relating to the design, specification and content of the Service and the Seamless App, (b) information relating to your and AskMeWhy’s business processes and methods, (c) confidential information relating to the Information and (d) information relating to the terms upon which the Service is provided to you.

«Customer» means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

«Data Protection Appendix (DPA)» means the Data Protection Appendix to these Terms;

«Fees» means the fees (excluding any taxes and duties) payable by You to use the Service and access the Seamless App as set out in the Invoice, and subject to change from time to time on prior notice to you.

«Implementation Services» means the initial assistance to set-up and customize the Seamless App or any other assistance to access the Seamless App for your use and initial implementation of your specified business rules to be applied in the validation of your Information including any subsequent changes requested by you from time to time.

«Information» means any data, in any format, document, information including Seamless App Information, Service Accounts entered, scanned, transmitted or uploaded to the Seamless App or otherwise provided to AskMeWhy by you or on your behalf for the purpose of using the Service.

«Intellectual Property Rights» mean all intellectual property rights including without limitation, (a) patents, trademarks, copyright, registered designs, trade names, symbols and logos and (b) tools, templates, techniques, computer program code, trade secrets, information or logical sequences (whether or not reduced to writing or other machine or human readable form) .

«Invoice», the actual invoice for the Term of the Service issued by AskMeWhy.

«Order Form» means the quote, provisioning form, invoice or other proposal setting out the Fees, Term and other information relating to the Service to be provided by AskMeWhy and accepted by you.

«Seamless for Office 365» means AskMeWhy’s proprietary software that deploys SharePoint SiteCollections based on your templates and that visualizes your SharePoint Data in a user-friendly way. Seamless for Office 365 will only provision workspaces and modify the display of your SharePoint Data according to your configuration.

«Seamless for O365» or «Service» means the Seamless Add-On for Office 365 and SharePoint available via the Seamless App including the Implementation Services and the Support Services.

«Seamless App» means the SharePoint Add-On developed by AskMeWhy accessed by the Authorized Users as part of the Service including all related systems, files, components and programs, or any part of it.

«Seamless SLSA», «Seamless O365 SLSA» or «SLSA» means the Seamless O365 Service Level and Support Agreement (Seamless O365 SLSA) available at www.askmewhy.com/seamless-o365-slsagreement

«Service Level» means the service levels set out in the Seamless Office 365 Service Level and Support Agreement (Seamless O365 SLSA) available at www.askmewhy.com/seamless-o365-slsagreement.

«Support Services» means the email support services set out in the Seamless O365 Service Level and Support Agreement (Seamless O365 SLSA) available at www.askmewhy.com/cms-o365-slsagreement.

«Term» means the term you have agreed to subscribe to the Service and in the absence of any agreed duration, shall be for a period of 1 year.

«User ID» means your username and your password.

«Working Day» means any day other than a Saturday, Sunday or public holiday in Zürich Switzerland.

«You» and «Your» means the business entity registered to use the services and any person or entity authorized by you or on your behalf to use the Service from time to time («Authorized User»).

1.     Your Agreement to this Subscription

1.1 The Subscription included in these Terms only applies to Seamless for Microsoft Office 365 or Microsoft SharePoint Online including any updates and upgrades and any accompanying distributable files, data and materials («Seamless for Office 365»). You should carefully read the following terms and conditions before using the Seamless Service («Service»). By registering for the Service and accessing the Seamless App you agree that you have read, understood and accepted these terms and conditions including the Appendix and its Schedule («Terms») and agree to be bound by them.

1.2 These Terms together with the Order Form record the entire agreement and prevail over any earlier agreement between You and Us. Except as otherwise provided in these Terms, variation is only effective if signed by both AskMeWhy and You.

1.3 We may change these Terms at any time and any changes will be effective from the time they are posted in the Seamless App or are otherwise notified to you.

1.4 Seamless operates in conjunction with appropriate versions of Microsoft Office 365 or Microsoft SharePoint Online. The use of Microsoft Office 365 or Microsoft SharePoint Online are not included in this Subscription. You must separately subscribe and hold sufficient Licenses to use Microsoft Office 365 or SharePoint Online. AskMeWhy is not responsible for the provision, licensing, or functionality of Microsoft Office 365 or Microsoft SharePoint Online.

1.5 Please read the Subscription terms below. If you do not agree to all of the terms and conditions of this Subscription, then do not register for or use the Service.

2.     Scope of Subscription

2.1 Subject to the terms below, you are hereby granted a non-exclusive non-transferable Subscription to access the Seamless App and use the Service strictly for your internal business purposes during the subscription Term for which you have purchased a Subscription.

2.2 You may not use the Service for the benefit of any other third party.

2.3 You shall not exceed the number of Authorized Users for which you have subscribed and paid for. If you wish to add more users, you must request a modification to your Subscription and pay the relevant Fees.

3.     Evaluation or Trial Period

3.1 If you have requested and signed up for the Service for a trial or on an evaluation basis then notwithstanding any other term of these Terms:

  1. your access to the Seamless App and use of the Service is limited to use for demonstration, test or evaluation purposes only; and
  2. the trial is not intended for production; and
  3. the Seamless O365 SLSA does not apply to a trial; and
  4. the trial period will automatically terminate 30 days after the date you first accessed the Seamless App and you accepted these Terms or at a later date as agreed between the parties or you registered to use the Service on a trial basis, whichever is earlier.

3.2 If you want to use this Service after the trial period, you must acquire from AskMeWhy a subscription under these Terms to use the Service and pay the applicable Fees. Please contact solutions@askmewhy.com  for information about licensing, and ordering options. Use of the Service or access to the Seamless App after the expiration of the trial period without acquiring such a subscription from AskMeWhy is prohibited and a violation of international copyright laws.

4.     Subscription Fee

4.1 To use the Service, you must have paid all applicable Fees including any applicable taxes and duties. If you do not pay such Fees, AskMeWhy may suspend access to all or part of the Service until payment is received in full and/or cancel your registration and terminate your access to the Seamless App and your use of the Service.

4.2 AskMeWhy shall be entitled to increase the annual fees for User Subscriptions with effect from the start of each Renewal Period upon 90 days' prior notice to Customer and the Agreement shall be deemed to have been amended accordingly.

5.     Your Obligations

5.1 Seamless is operated as Software as a Service. It is licensed strictly on the terms and conditions of these Terms. All rights of any kind in Seamless which are not expressly granted in this Subscription are entirely and exclusively reserved to and by AskMeWhy.

5.2 You agree to provide true and complete information about yourself and your organization, and to let us know whenever any of your registration information changes. You confirm that you have authority to use the Seamless App.

5.3 Your Information is your property. You license that Information to us so that we can provide the Service to you. The Information will only be used for the purpose of providing the Service and for billing purposes. You undertake that the Information provided to us does not infringe any person’s intellectual property rights and is not otherwise illegal, fraudulent or defamatory (according to EU data protection directive (EU) 2016/679).

5.5 While we use our best commercial efforts to prevent loss of your Information, including backing up our own data, which may include the Information in original or amended form, we do not guarantee that there will be no loss of your Information. You must maintain back-up copies of your Information.

5.6 You are responsible for all authorized and unauthorized access to the Seamless App and use of the Service.

5.7 You will procure that any Authorized User comply with these Terms in relation to access to the Seamless App and use of the Service, and you will be responsible for any breach of these Terms by any Authorized User.

5.8 You will keep and maintain:

  1. a valid subscription to Microsoft Office 365 or Microsoft SharePoint Online for the number of users for which you have subscribed for the Authorized Users;
  2. network, facilities and equipment and systems in accordance with the minimum specifications stipulated by Microsoft in relation to its Office 365 environment and by AskMeWhy in relation to its Service; and
  3. a network connection and internet link at all times.

5.9 You will provide AskMeWhy with access to your Microsoft Office 365 or Microsoft SharePoint Online service via secure protocols and authentication to enable AskMeWhy to provide the Service to you.

5.10 You are responsible for the data and content in your SharePoint Online Service in compliance with the laws of the country in which you are operating.

5.11 You agree that you are solely responsible for all use of your User ID, you will change your Password if we request you to do so and you will not gain or try to gain unauthorized access to the Seamless App.

5.12 You are responsible for access rights of Authorized Users and for ensuring that User IDs of all Authorized Users are kept secure and confidential.

5.13 You can set administration rights to the Seamless App, add, vary and delete any Authorized User and control the rights and permissions of any Authorized User using the Seamless App.

5.14 You must notify us immediately if there has been any unauthorized access to the Seamless App or if your User ID has been disclosed to a third party.

5.15 You will ensure that the number of Authorized Users do not exceed the number of users in respect of which you have paid the applicable Fees. You authorize us to audit the number of users connected to the Service from time to time and will pay the additional Fees in respect of any excess users determined by such audit.

6.     Restrictions on use

6.1 As a condition of using the Service and accessing the Seamless App, you must not:

  1. attempt to undermine the security or integrity of AskMeWhy’s computing systems or networks or, where the Service is hosted by a third party, that third party’s computing systems and networks;
  2. use, or misuse, the Service in any way which may impair the functionality of the Service or Seamless App, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Seamless App;
  3. attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the Service is hosted;
  4. transmit, input or upload onto the Seamless App any files that may damage any other person’s computing devices or software, content which may be obscene, offensive, upsetting or defamatory, or material or Information which infringes the intellectual property rights of any other person or otherwise does not comply with all applicable laws; and
  5. attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs or software used to deliver the Service or to operate the Seamless App except as is strictly necessary to use either of them for normal operation.

6.2 We reserve the right to modify the Tenant and change the URL address of AskMeWhy’s server or service.

7.     Service Levels

7.1 AskMeWhy will provide a level of service, which complies with the Seamless O365 Service Level and Support Agreement (Seamless O365 SLSA) available at www.askmewhy.com/seamless-o365-slsagreement

7.2 While we use our best commercial efforts in providing the Service in accordance with the requirements of the Seamless O365 SLSA, we do not guarantee or warrant that the use of the Service or access to the Seamless App will be continuous or fault free. Your sole and exclusive remedy for any failure to meet the required Service Levels is the provision of service credits as set out in the Seamless O365 SLSA.

7.3 If a breakdown in any system or facility of AskMeWhy adversely affects the ability of AskMeWhy to provide the Services in accordance with the Service Levels, AskMeWhy will notify you as soon as practicable.

7.4 Subject to compliance with clause 7.1, AskMeWhy may vary its systems, facilities and their specifications at its discretion.

7.5 AskMeWhy will not be responsible for any failure to comply with the Seamless O365 SLSA if such failure is caused by factors beyond AskMeWhy’s reasonable control, including but not limited to telecommunications failure or fault, defective equipment utilized by you, or any default by you in your obligations under these Terms.

8.     Support Services

AskMeWhy will provide the Support Services compliant with the Seamless O365 Service Level and Support Agreement (Seamless O365 SLSA) available at www.askmewhy.com/seamless-o365-slsagreement

9.     Intellectual property rights

All Intellectual Property Rights to the Service and the Seamless App including all software and documentation associated with the Seamless App and any subsequent modifications and improvements belong to AskMeWhy.

10.   Confidentiality

10.1 Each party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information, and it must ensure that its employees and subcontractors comply with this obligation.

10.2 A party will not be in breach of this provision in circumstances where it is legally compelled to disclose the other party’s Confidential Information or where such information has become publicly available other than by a breach of this agreement.

10.3 This section shall survive termination of these Terms.

11.   Data Protection

11.1 The parties will comply with their respective obligations as set out in the Data Protection Appendix (DPA).

12.   Warranty Disclaimers and Liability Limitations

12.1 You acknowledge that the use of the Service and access to the Seamless App, and all related features available through the Seamless App are provided:

  1. on an «as is» and «as available» basis,
  2. at your sole risk and
  3. without representations or warranties of any kind, either express or implied, and all warranties, whether express or implied, are excluded including implied warranties of merchantability and fitness for a particular purpose.

12.2 To the maximum extent permitted by law, in no circumstances (including negligence) will AskMeWhy, our related companies and affiliates or their officers, employees, advisers, partners, agents or suppliers, be liable for any sort of damages that result from:

  1. any of your Information,
  2. your reliance on the Seamless App, or
  3. the use of or access to, or the inability to use or access the Seamless App, or
  4. the loss of any data or Information;

Indirect damage (including punitive damages), loss (including loss of use, data, profits, business or any economic loss) or cost (including legal and lawyer/client costs) caused or contributed to by us or them in relation to these Terms.

12.3 You warrant that you are using this Seamless App or the Service for the purposes of a business, and acknowledge and agree that any consumer related warranties, conditions or guarantees whether express or implied by any legislation or general law are hereby expressly excluded.

12.4 If for any reason the disclaimers or exclusion of liability contained in this clause 12 cannot be relied upon by AskMeWhy or any other party referred to in this clause due to mandatory laws in other jurisdictions, then the sole and exclusive remedy for the breach of any implied warranty or condition shall be at AskMeWhy’s sole discretion:

  1. Re-supplying the Service again,
  2. Refunding you 10% of the total amount actually received by AskMeWhy in respect of Fees for the Service in the 12-month period immediately preceding the month in which liability arises; or
  3. Terminating your registration and/or these Terms.

12.5 Our total aggregate liability to you or anyone else using the Service or the Seamless App in respect of any one incident or series of connected incidents, for damages, losses, and causes of action (whether in contract, tort, including negligence, under statute or otherwise), will not exceed the total Fees actually paid by you to us in the 12 months preceding the month in which the liability arises.

13.   Force Majeure

AskMeWhy will have no liability to you under these Terms if it is prevented from or delayed in performing its obligations under these Terms or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control provided that you are notified of such an event as soon as reasonably practicable and its expected duration.

14.   Indemnification

14.1 AskMeWhy will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a purchased Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights (a «Claim»), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of a Claim, provided Customer

  1. gives AskMeWhy written notice of any Claim,
  2. give AskMeWhy sole control of the defense and settlement of the Claim (except that AskMeWhy may not settle any Claim unless it unconditionally releases Customer of all liability), and
  3. give AskMeWhy all reasonable assistance, at AskMeWhy's expense. If AskMeWhy receives information about a Claim, AskMeWhy may in its discretion and at no cost to Customer
    1. modify the Service so that it no longer infringes or misappropriates, without breaching the warranty under Section 12 (Warranty Disclaimers and Liability Limitations),
    2. obtain a Subscription for Customer's continued use of that Service in accordance with this Agreement, or
    3. terminate Customer's subscription for that Service and refund Customer any prepaid Fees covering the remainder of the Subscription Term.

The above defense and indemnification obligations do not apply to the extent a Claim arises from:

  1. the Third-Party Applications or Customer's use thereof;
  2. a modification of the Services by anyone other than AskMeWhy or its subcontractors;
  3. Customer's use of Services otherwise than in accordance with the Agreement and/or Order Form;
  4. Customer's use of the Services in connection with Third Party Applications or any other third party services or products where such services or products cause the Claim; or
  5. Customer's use of the Services after notice of the alleged or actual Claim from AskMeWhy or the appropriate authority.

14.2 Customer will defend AskMeWhy against any claim, demand, suit or proceeding made or brought against AskMeWhy by a third party alleging that Customer Data, or Customer's use of any Service infringes or misappropriates such third party's intellectual property rights or violates applicable law (a «Claim Against AskMeWhy»), and will indemnify AskMeWhy from any damages, attorney fees and costs finally awarded against AskMeWhy as a result of, or for any amounts paid by AskMeWhy under a court-approved settlement of, a Claim Against AskMeWhy, provided AskMeWhy

  1. promptly gives Customer written notice of the Claim Against AskMeWhy,
  2. gives Customer sole control of the defence and settlement of the Claim Against AskMeWhy (except that Customer may not settle any Claim Against AskMeWhy unless it unconditionally releases AskMeWhy of all liability), and
  3. gives Customer all reasonable assistance, at Customer's expense.

15.   Termination

15.1 These Terms (including the license to use and access the Seamless App) commences upon the earlier of accessing the Seamless App or your acceptance of these Terms or you have registered to use the Service and shall continue for the Term until terminated in accordance with these Terms.

15.2 Either party may terminate these Terms by giving three months’ prior notice in writing to take effect by the end of the current Term. In the absence of such notice in due time, the Term shall be renewed for a further one-year period and you agree to pay in advance AskMeWhy’s then current Fees applicable for the further Term, and the number of Authorized Users.

15.3 AskMeWhy may immediately suspend your access to the Seamless App and/or use of the Service or access to the Information or terminate your registration to use the Service:

  1. if you breach any of these Terms,
  2. if payment of any Fees are more than 10 working days overdue,
  3. if we think that you have misused the Seamless App,
  4. if your registration information is, or we think that it is, untrue, incomplete or not current, or
  5. if you are or become insolvent or bankrupt, or if you make an assignment for the benefit of or enter into or make any arrangement or composition for the benefit of your creditors, or if you go into receivership or have a receiver, trustee and manager (or any of them) (including a statutory manager) appointed in respect of all or any of your property.

15.4 Upon termination, all subscriptions and licenses granted under these Terms will end and you may not use or access the Seamless App; and you shall immediately discontinue any and all use of Seamless.

15.5 AskMeWhy shall cease providing the Service to you and be entitled to remove your Information from the Seamless App; and

15.6 On termination you will remain liable for any accrued Fees which become due for payment before or after termination.

15.7 On suspension or termination of your registration, and/or these Terms, AskMeWhy will not provide any refund for any remaining prepaid period for a prepaid subscription for the period of the suspension, or following termination.

15.8 All provisions of this Subscription that by their nature are intended to survive the expiration of the License granted hereunder shall survive and remain in full force and effect.

16.   Notices

Any notice given under these Terms by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to AskMeWhy must be sent to solutions@askmewhy.com or to any other email address notified by email to you by AskMeWhy. Notices to you will be sent to the email address which you provided when setting up your access to the Service.

17.   Linking

We have not reviewed and are not responsible for any of the sites linked to the Site. You may not link to the Seamless App (including framing, alteration of contents of the Seamless App, re-branding of content, use of metatags or hidden text techniques) without our written consent.

18.   Jurisdiction

All disputes arising out of or in connection with this Agreement shall be governed by substantive Swiss law excluding the conflict of law rules and the Laws in treaties including but not limited to the Uniform Law on Purchases (Vienna treaty). The Commercial Court of the Canton of Zurich shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.

19.   Dispute Resolution

If any dispute arises in relation to these Terms, any party may notify the other in writing of the dispute and request resolution. The parties will then try to resolve the dispute by negotiation, mediation or other alternative resolution techniques. If the dispute is not resolved within 14 days of the date of receipt of the notice any party may refer it to be finally resolved by arbitration that will be held in Zurich.

20.   General

20.1 The Seamless App, including, without limitation, the information included in its accompanying distributable files, data and materials and any related activation code and registration code files or information, and the know-how embodied in Seamless, is confidential and trade secret information and subject to copyright that is proprietary to and solely owned by or Licensed to AskMeWhy, together with all related trademarks and other intellectual property rights relating thereto. You agree to maintain the Proprietary Information in strictest confidence for the benefit of AskMeWhy and its licensors. You shall not sell, assign, license, publish, display, distribute, disclose, or otherwise make available or allow to be made available the Proprietary Information, to any third party nor use such Proprietary Information except as authorized by these Terms.

20.2 The obligations under this paragraph shall survive any termination or cancellation of these Terms.

20.3 These Terms are the complete statement of the agreement between the parties on the subject matter, and merges and supersedes all other or prior understandings, purchase orders, agreements, and arrangements.

20.4 There are no third-party beneficiaries of any promises, obligations, or representations made by AskMeWhy herein.

20.5 Your rights and obligations under the Terms may not be assigned, transferred or otherwise disposed of in any way by you. We may assign any or all of our rights and obligations under these Terms to any person.

20.6 Any waiver by AskMeWhy of any violation of these Terms by you shall not constitute, nor contribute to, a waiver by AskMeWhy of any other or future violation by you of the same provision, or any other provision, of these Terms.

20.7 You acknowledge and agree that monetary damages alone would not be an adequate remedy in the event of a material breach by you of your obligations or agreements under these Terms and that, in such event, AskMeWhy or any of its affiliates shall be entitled to injunctive relief to require you to comply with its obligations hereunder.

20.8 Any remedy available under these Terms shall be cumulative and not exclusive of any other remedy available to AskMeWhy or any of its affiliates under these Terms, at law or in equity.

20.9 If any part of these Terms or the application thereof to any person or circumstance are for any reason held invalid or unenforceable, it shall be deemed severable, and the validity of the remainder of these Terms, or the applications of such provision to other persons or circumstances, shall not be affected thereby.

20.10 You will keep accurate business records sufficient to allow AskMeWhy to verify on request that your use of the Services complies with these Terms.

 

Questions ?

Please also feel free to contact us if You have any questions about this Seamless o365 Subscription Agreement. You may also write to us at the following address:

AskMeWhy AG
Industriestrasse 47
8152 Glattbrugg
Switzerland

www.askmewhy.com